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TMI Blog2020 (6) TMI 491X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd.'- ('Corporate Debtor'), 'M/s. B.R. Traders (one of the Appellants herein) filed Miscellaneous Application under section 60(5) of the Insolvency and Bankruptcy Code, 2016 ("I&B Code" for short) for direction to the 'Resolution Professional' and the members of the 'Committee of Creditors' to reconsider the 'Resolution Plan' submitted by the Resolution Applicant- 'M/s. B.R. Traders'. It was rejected by the Adjudicating Authority (National Company Law Tribunal), Single Bench, Chennai by impugned order dated 31st October, 2018, which is under challenge in Company Appeal (AT) (Insolvency) No. 189 of 2019. 2. 'M/s. K.K. Foods' (another Appellant) filed similar application under section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich are lying at the premises of the 'Corporate Debtor'. The Adjudicating Authority by order dated 28th May, 2019 rejected the application which has been challenged by the Shareholder in Company Appeal (AT) (Insolvency) No. 686 of 2019. Case of 'M/s. B.R. Traders' 5. Learned counsel appearing on behalf of the Appellant submitted that the 'Resolution Plan' submitted by the 'Resolution Applicant'- 'M/s. B.R. Traders' was within time. The Appellant is belonging to the similar line of business as that of the 'Corporate Debtor' and would have the potentiality to be in a position to revive the 'Corporate Debtor' and to run the same as a 'going concern, which is in the interest of all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 'Corporate Debtor' is Rs. 121.60 Crores approximately excluding the non-core assets which the 'Resolution Professional' has failed to take into consideration and liquidation value of the assets of the 'Corporate Debtor' as well as the Promoters is Rs. 89.10 Crores which was also accepted by the Promoters. However, the 'Resolution Applicant'- 'M/s. K.K. Foods' quoted lessor amount of Rs. 71.17 Crores which is below the Liquidation Value and, therefore, it is not accepted. 10. From the record, we find that both the 'Resolution Applicants' namely- 'M/s. B.R. Traders' and 'M/s. K.K. Foods' (Appellants herein) proposed amount less than the Liquidation Value of the assets of the & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shareholder) 13. According to the counsel for the Shareholder of the 'Corporate Debtor', the Liquidation Value was obtained in an open process which is fundamentally not correct. 14. It was submitted that the 'Committee of Creditors' informed about the assets value of the 'Corporate Debtor' (Liquidation Value) at Rs. 89.10 Crores which is not based on assets of the 'Corporate Debtor' but includes the assets of guarantor and 3rd Party. 15. It was submitted that the Adjudicating Authority erred by overlooking the reason for non-consideration of the 'Resolution Plan' by the 'Committee of Creditors' and instead of directing compliance under the 'I&B Code', has erroneously passed an ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 'Corporate Debtor'. As per clause 15.3(b) of the Agreement, either party was entitled to terminate the Agreement if the other party entered into bankruptcy, liquidation or in the event that its business or assets were confiscated or seized as a result of foreign interference or a winding up petition was admitted or if it made any assignment for benefit of its creditors. 19. According to the Appellant, it addressed a termination notice dated 28th November, 2017 to the 'Corporate Debtor'. The copy to the 'Interim Resolution Professional' stating inter alia in view of the admission of the insolvency against the 'Corporate Debtor', the agreement was liable to be terminated under clause 15.3(b) of the Agreemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Appellant does not arise. 23. It appears that the 'Corporate Debtor' was a plant and the Appellant has supplied Plant & Machinery. Even during the liquidation process, the Liquidator is to ensure that the 'Corporate Debtor' remains a going concern. 24. As per the decision of the Hon'ble Supreme Court and this Appellate Tribunal, one should ensure that the 'Corporate Insolvency Resolution Process' ends in success for revival and restructuring of the company. Liquidation is not answer but the sale of assets can be made only at final stage. 25. As per the decision of this Appellate Tribunal in Y. Shivram Prasad v. S. Dhanapal [2019] 104 taxmann.com 377/153 SCL 294 (NCL - AT), during the liquidation process, th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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